All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President
Obama Is a “Natural Born Citizen”
By Mario Apuzzo, Esq.
February 3, 2012
Georgia State Administrative Law Judge, Michael M. Malihi, issued his decision on Friday, February 3, 2012, finding that putative President, Barack Obama, is eligible as a candidate for the presidential primary election under O.C.G.A. Sec. 21-2-5(b). The decision can be read here, http://obamareleaseyourrecords.blogspot.com/2012/02/judge-malihi-rules-against-plaintiffs.html . I must enter my objection to this decision which is not supported by either fact or law.
The Court held: “For purposes of this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny [sic meant Ankeny], he became a citizen at birth and is a natural born citizen.”
But there is no evidence before the Court that Obama was born in the United States. The court can only rest its finding of fact on evidence that is part of the court record. The judge tells us that he decided the merits of the plaintiffs’ claims. But he does not tell us in his decision what evidence he relied upon to “consider[]” that Obama was born in the United States. The judge “considered” that Obama was born in the United States. What does “considered” mean? Clearly, it is not enough for a court to consider evidence or law. It must make a finding after having considered facts and law. The judge simply does not commit to any finding as to where Obama was born. Using the word “considered” is a cop out from actually addressing the issue. Additionally, we know from his decision that neither Obama nor his attorney appeared at the hearing let alone introduced any evidence of Obama’s place of birth. We also know from the decision that the judge ruled that plaintiffs’ documents introduced into evidence were “of little, if any, probative value, and thus wholly insufficient to support Plaintiff’s allegations.” Surely, the court did not use those “insufficient” documents as evidence of Obama’s place of birth. Nor does the judge tell us that he used those documents for any such purpose. The judge also does not tell us that the court took any judicial notice of any evidence (not to imply that it could). The judge did find that Obama has been certified by the state executive committee of a political party. But with the rules of evidence of superior court applying, this finding does not establish anyone’s place of birth. Hence, what evidence did the judge have to rule that Obama is born in the United States. The answer is none.
The court did not engage in its own thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen,” but rather relied only upon Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), a state-court decision which erred in how it defined a “natural born Citizen.”
The court says that Ankeny is persuasive. The court does not show us why Ankeny is persuasive other than to just provide some quotations from the decision. On the contrary, upon close analysis, we can see that Ankeny is far from persuasive on the definition of a “natural born Citizen.” The court’s decision can only be as sound as the Ankeny decision may be. But an analysis of that decision shows that it was incorrectly decided as to its definition of an Article II “natural born Citizen.”
Presidential eligibility is a national issue. Under our Constitution, like the States do not have power to naturalize citizens, they also do not have power to change, add, or diminish the meaning of an Article II “natural born Citizen.” See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (states have no authority to change, add, or diminish the eligibility requirements for members of Congress). Moreover, as naturalization needs uniformity, so does the citizenship standard needed to be met by those wishing to be eligible to be President. Hence, any state court decision on the meaning of a “natural born Citizen” is not binding on the nation in determining who is eligible to be President. Such a decision can only be ultimately made by the U.S. Supreme Court which would make its decision the law of the entire nation. The Ankeny case is a decision of the Indiana state court and not by the U.S. Supreme Court. For this reason, the Ankeny decision is not binding on any court deciding the question of what is a “natural born Citizen.” But not only is the decision not binding, it also needs to be rejected for diminishing the meaning of an Article II “natural born Citizen.”
Apart from the Ankeny decision not being binding on the national issue of what is a “natural born Citizen,” the decision itself should be rejected on its merits.
The Constitution’s text does not define a “natural born Citizen.” Yet, Ankeny did not even discuss what the Founders’ and Framers” original intent was in including the “natural born” Citizen clause in the Constitution. It is a rule of constitutional construction that we can learn what the Founders and Framers intended by a certain term they included in the Constitution by discovering what their purpose was for including the term in that document. But the Ankeny court told us what an Article II “natural born Citizen” is without examining the purpose for which the Founders and Framers included that clause in Article II, Section 1. No where in the decision do we see that the court examined what the Founders’ and Framers’ intent was for inserting the clause in the Constitution. The court conducted no independent historical research or analysis regarding what the Founders and Framers intended when they wrote the “natural born Citizen” clause in the Constitution in 1787. In fact, no where in the decision did the court even raise the issue of the Founders’ and Framers’ intent when they wrote the clause in Article II. It provided no sources from the Founding period which in any way supports its holding. It discussed no historical records or declarations of historical figures. So its decision as to what a “natural born” Citizen is has no historical or legal support.
The Founders and Framers place their trust in “the Laws of Nature and of Nature’s God.” The Declaration of Independence, para. 1. They came to learn what natural law was from studying ancient history and its influence in the then modern world. They knew from studying this history and the great publicists, including Emer de Vattel who was the Founders’ and Framers’ favorite, that natural law became the law of nations. And Vattel in Section 212 of his The Law of Nations (London 1797) (1st ed. Neuchatel 1758) defined what a “natural born Citizen” is. There he said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The Indiana state court in Ankeny did not even discuss natural law and the law of nations. The Ankeny court just barely acknowledged Emer de Vattel. It refers to Vattel's highly influential work, The Law of Nations, as "an eighteenth century treatise" and discusses neither Vattel nor his work. Hence, it fails to understand the importance of the law of nations and Vattel to the Founders and Framers and in the founding of our nation and their drafting of our Constitution in which they included the law of nations and not the English common law as part of Article III "Laws of the United States." The court hardly knew who Emer de Vattel was. This should be an indication to anyone who has seriously studied the Obama eligibility issue of how much reliance we can place on the court’s ruling as to what a “natural born Citizen” is.
Judge Malihi also did not discuss the early naturalization statutes passed by our early Congresses. These acts are critical in understanding the definition of a “natural born Citizen” because so many members of the early Congresses were Founders and Framers. “The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption. One author has noted that of the “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.” Christina Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonzaga Law Review 349, 371 (2000/2001). The Naturalization Acts of 1790, 1795, and 1802, prove that only a child born in the United States to U.S. citizen parents can be an Article II “natural born Citizen.” These acts treated children born in the United States to alien parents as aliens themselves. These acts also naturalized children born abroad to U.S. citizen parents to be in 1790 “natural born citizens” and then in 1795 and thereafter “citizens of the United States.” By analyzing these acts, we can see that the only child over whom Congress did not exercise its naturalization power was a child born in the United States to citizen parents. Hence, that child was the “natural born citizen.”
Ankeny misread Minor v. Happersett, 88 U.S. 162 (1875), saying that the Minor Court read Article II and the Fourteenth Amendment "in tandem," suggesting without any support that the latter somehow amended the former. It also erred when it said that Minor "left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen." The Court did no such thing. Rather, the Court left open that question as it applies to a Fourteenth Amendment born "citizen of the United States," not an Article II "natural born Citizen." Minor told us that there is no doubt who a “natural born Citizen” is, telling us that it is a child born in the country of two U.S. citizen parents. That definition is based on natural law and the law of nations and not the English common law. Indeed, this confirms that the Founders and Framers gave us only one citizenship definition to be used to determine eligibility to be President. On the other hand, Minor added that there is doubt as to whether a child born in the U.S. to alien parents was even a “citizen.” The Framers gave Congress the power to make future “citizens of the United States” through naturalization. Hence, the doubts have been over the definition making persons the parents of a future “natural born Citizen,” not over the definition making the child of those parents a “natural born Citizen.” It also confounded Minor and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) as relying upon the English common law to define a “citizen” and a “natural born Citizen.” It said that Minor relied upon the English common law like Wong Kim Ark did when it did not do any such thing, for it relied upon natural law and the law of nations which when applied in the United States became “common-law” (the language that Minor used), which given the definition of a “natural-born citizen” that the Court provided (including the citizenship of the parents as a condition of being a “natural-born citizen”) could not have been English common law but rather was American common law. In order to justify its decision, Ankeny gave authority and respect to the feudal English common law (per Lord Coke and Lord Chief Justice Cockburn) on matters of U.S. citizenship and gave no such authority and respect to our own American common law which Minor showed replaced that feudal law in the new republic. In fact, there is not one word in the Minor decision which sounds in the language of the English common law, yet Ankeny said that it relied upon English common law. It distinguished Minor in footnote 12 by saying that it “contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.” But it did not explain how or why having one U.S. citizen parent rather than none would make any difference when applying the “natural born” Citizen clause.
Wong Kim Ark, a Fourteenth Amendment citizenship case, answered the question left open in Minor, which question concerned whether Wong Kim Ark was a “citizen of the United States,” not an Article II “natural born Citizen.” Wong Kim Ark relied upon the English common law, which historically had been used to define British nationality and not American nationality, to define a “citizen of the United States.” But Ankeny mistakenly concluded that Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a “citizen of the United States.” Wong Kim Ark did no such thing. There is nothing in Wong Kim Ark decision that suggests that the Court declared Wong Kim Ark an Article II “natural born Citizen” and therefore eligible to be President. The U.S. Supreme Court in Minor v. Happersett (1875) already had told us that there was no doubt as to who could be a “natural born Citizen.” Since there is no doubt and if Wong Kim Ark was a “natural born Citizen,” the U.S. government would not have argued that he was not even a “citizen of the United States,” let alone a “natural born Citizen.” Also, Wong Kim Ark never said that Minor was wrong in defining a “natural born Citizen” in the way that it did under natural law and the law of nations and not the English common law.
Also, Ankeny relied strictly upon U.S. v. Wong Kim Ark and its historical sources for its decision on what a “natural born Citizen” is. They made a monumental declaration as to the meaning of the clause based solely upon a 1898 U.S. Supreme Court case that did not even involve any dispute regarding the meaning of a “natural born Citizen” and which ironically confirmed Vattel’s definition of a “natural born Citizen” as stated by Minor v. Happersett in 1875.
Ankeny incorrectly took the Wong Kim Ark holding that Wong was a Fourteenth Amendment born "citizen of the United States," and even though Wong itself provides a different definition for an Article II "natural born Citizen," and even though Wong cites and accepts Minor's definition of a "natural born Citizen," the Ankeny court equated the Wong "citizen of the United States" with an Article II "natural born Citizen" and said that the Wong decision stands for such a proposition when it does not. Hence, it erroneously relied upon Wong Kim Ark, stating that the Court there declared Wong a “natural born citizen” when it only declared him a “citizen” of the United States. In Footnote 14 it said: “We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution’s Article II language is immaterial. This is a fantastic statement given the care and precision which the Founders and Framers used with their language in drafting and adopting the Constitution, a circumstance which has always been recognized by our U.S. Supreme Court when called upon to interpret the Constitution. Additionally, Wong Kim Ark itself distinguished between a child born in the country to one or two alien parents and a child born in the country to citizen parents, telling us that while both are “citizens,” only the latter is a “natural born” Citizen. Wong said: “‘The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ p. 22, note.” Wong Kim Ark, at 666-67 (citing and quoting Binney’s 1853 pamphlet on citizenship).
Ankeny erroneously conflated an Article II "natural born Citizen" with a Fourteenth Amendment "citizen of the United States." Article II, Section 1, Clause 5 and other parts of the Constitution are clear in distinguishing between a “natural born Citizen” and a “Citizen of the United States.” The text of the Fourteenth Amendment defines a “citizen of the United States,” not a “natural born Citizen.” Even if we were to give them any controlling effect which they do not have, there is also nothing in the legislative debates which indicates that the amendment was designed to change the meaning of an Article II “natural born Citizen.” We cannot just forget about the distinction made by the Framers in Article II between a “natural born Citizen” and a “Citizen of the United States.” Just ruling someone to be a “citizen of the United States” does not necessarily mean that the person is a “natural born Citizen,” for “citizens of the United States” are made up of “natural born Citizens” and naturalized “citizens of the United States.” The latter are naturalized either “at birth” or after birth. “Natural born Citizens” are citizens by virtue of natural law. Other U.S. citizens are citizens by virtue of positive law which in Wong Kim Ark was “by virtue of the first clause of the fourteenth amendment.” Wonk Kim Ark, at 686.
Ankeny as did Wong Kim Ark also mistakenly relied upon Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830). What the court did is cite and quote from Justice Story who was in the minority and whose opinion was not accepted by the majority. The majority of the Court in Inglis, which included Chief Justice John Marshall, did not rely upon the English common law jus soli rule but rather the law of nation jus sanguinis rule when it held that if the demandant was born in New York after July 4, 1776, his minority incapacitated him from making any election as to which citizenship to chose and he therefore inherited the character and election and therefore the citizenship of his father (father and mother) who, if born a British subject and if he continued that national character as of the time of his son’s birth, made the son British also, subject to the son renouncing the citizenship chosen for him by his British father during minority and choosing U.S. citizenship upon becoming an adult. Id. at 124 and 126. The majority cited and relied upon Vattel when arguing that a person has a right to elect what nation to be part of in time of revolution. Id. at 122. Justice Story put forth the English common law jus soli rule for citizenship and ruled that the damandant if born in New York was an “American citizen” regardless of the citizenship of his parents (Id. at 164 and 170). But Justice Story was in the minority. The majority of the Court did not adopt Justice Story’s opinion and reliance on the English common law.
Both Ankeny and Wong Kim Ark also mistakenly relied upon that part of the dissenting opinion in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), which was not directed to the issue of slavery disabling blacks from being citizens but rather directed to whether we defined U.S. citizenship under natural law and the law of nations or under the English common law. This dissenting opinion did not carry the day and was also rejected by the Minor court which in 1875 defined a “natural-born citizen” as a child born in a country to citizen parents.
Ankeny used English common law to define an Article II "natural born Citizen" when all U.S. Supreme Court cases, including Minor and Wong Kim Ark, have used American common law to do so.
Ankeny said: “Although President Arthur’s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur’s father was an Irish citizen he was constitutionally ineligible to be President.” But the court provided no evidence that anyone then was aware that when Chester Arthur was born, he was born to an alien father. Additionally, even if anyone of any authority was aware that Arthur’s father when he was born was an alien, one constitutional violation does not justify another.
Ankeny cited and quoted from Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) in support of its definition of a "natural born Citizen" when the question of the meaning of the clause did not exist in that case and the only reference therein to a "natural born Citizen" was made by the court when it recited the facts but not when it provided any legal analysis. It is incredible that the court would give such weight to such a statement of dicta and not give any weight to the U.S. Supreme Court’s definition of a “natural-born citizen” in Minor.
The pro se plaintiffs in Ankeny claimed, among other things, that Obama was not eligible to be President under Article II, Section 1. The court said that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents….” The court affirmed the dismissal of plaintiffs’ complaint on defendants’ motion that on its face plaintiffs’ complaint failed to state a claim upon which relief can be granted. What is also amazing about the Ankeny case is that after it went through its explanation as to what a “natural born Citizen” is and while it dismissed the plaintiffs’ case in which they argued both that Obama has yet to prove that he was born in the United States (it called that claim a “non-factual assertion[]”) and that even if he were so born he still fails to meet the legal definition of a “natural born Citizen,” it neither held that Obama was born in the United States nor that he is a “natural born Citizen.” In fact, there was absolutely no evidence before the court that Obama was born in Hawaii. And as we have seen, there was also absolutely no evidence before Judge Malihi showing the Obama was born in the United States. Hence, the Ankeny opinion regarding whether Obama is a “natural born Citizen” is nothing more than an advisory opinion, for the Court never ruled that he was such. The court never addressed the question of whether he was born in Hawaii. No evidence was presented to the court whether he was “born within the borders of the United States.” The court never even examined that issue. Hence, its statement that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents” does not prove that Obama was, in fact, born within the borders of the United States” and that he is therefore a “natural born Citizen.”
Ankeny was advisory on the "natural born Citizen" issue because it gave us its definition of a "natural born Citizen" but never applied that definition to Obama's personal situation. It resolved no real controversy. After it pronounced what the law was, it needed to apply that law to the facts. It needed to find that Obama was born in the United States and that he was thus a "natural born Citizen" to give its opinion any binding effect. It never made the finding that Obama was born in the United States. It never said that such a fact was established by the evidence before the court. So its whole opinion on what is a "natural born Citizen" is purely advisory.
To conclude that plaintiffs did not state a sufficient claim given the court’s ruling as to what a “natural born Citizen” is, there would have to exist uncontroverted evidence that Obama was in fact eligible to be President. The question of presidential eligibility is a legal question which the court could examine on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. But in order to make any conclusion as to whether plaintiffs adequately challenged Obama’s eligibility, given the fact that on a motion to dismiss a complaint the court is supposed to “view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant’s favor, and given the court’s own definition of what is a “natural born Citizen,” the court had to examine whether Obama was “born within the borders of the United States.” This legal hurdle shows that the court could not decide the question of the legal sufficiency of plaintiffs’ complaint by simply examining its face alone. Rather, the court needed evidence outside the complaint (e.g. a birth certificate) which means that the court would have had to convert the motion to dismiss to one for summary judgment.
But not only was there no evidence presented to the Ankeny court showing that Obama was in fact born in the United States, the court never called for such evidence nor did it even make such a factual finding. By the court’s own words, the citizenship of Obama’s parents was not relevant. But surely the only element of its “natural born Citizen” test, that Obama was born in the United States, was critically relevant. Yet the court dismissed the complaint for failure to state a claim without any evidence that Obama was born in the United States. Hence, how can the court dismiss the complaint for failure to state a claim? Rather, what the court did is just by way of advisory opinion tell us what it believes to be a “natural born Citizen” without applying its definition to the question of whether Obama is constitutionally eligible. If the court had addressed the place of birth issue, given its definition of a “natural born Citizen,” it would have ended the live controversy. It did not do that so its opinion is a mere advisory opinion with no application to a live factual controversy producing a just resolution. Lastly, if the court’s decision had not been advisory, the nation today would know whether Obama was or was not born “within the borders of the United States.”
The Ankeny plaintiffs may have argued that place of birth did not matter, given the two-citizen parent argument. But surely, they did not concede that Obama was born in the United States and the court did not make a finding that they made any such concession. Hence, once the court rejected the citizen-parents element and relied strictly on the place of birth, it could not simply conclude that plaintiffs did not state a claim, for the ultimate issue was always Obama's eligibility which they clearly stated in their complaint. Again, the court was duty bound on a motion to dismiss on the face of the complaint to give the non-moving party every reasonable inference. I cannot imagine, given that the court was well aware of the issue of place of birth, the plaintiffs never conceded that Obama was born in the United States, the ultimate issue was eligibility, and the requirement that a court faced with a motion to dismiss on the face of a complaint is to give the non-movant the benefit of all reasonable inferences, the court not treating a complaint that says that Obama was not eligible as also encompassing the place of birth issue or in the alternative not giving the non-moving pro se parties the opportunity to amend their complaint.
The Ankeny court could have completely disposed of the case on an independent state ground. There was no need for the court to journey into the waters of what an Article II “natural born Citizen” is. Not being satisfied with giving us its opinion on what a “natural born Citizen” is as it pertains to persons born in the United States, the court in Footnote 15 even cautioned that while the question of whether someone born out of the United States can be a “natural born” Citizen was not before it, its decision should not be interpreted to mean that being born in the United States is the only way someone can be a “natural born Citizen.”
As we have seen, Ankeny is simply bad law for many reasons. The main one is that it rests on the incorrect notion that Wong Kim Ark declaring that Wong was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment necessarily means that the Court said he was a “natural born Citizen.” Such a position is remarkable given that the Indiana court itself admitted in its own opinion that it is aware that the Constitution contains both “natural born Citizens” and “citizens of the United States” and that the Wong holding did not include “natural born Citizen.”
So, any citation to Ankeny v, Governor of Indiana is misguided for at least two reasons, and as we have seen above there are many more. It read Minor v. Happersett as having doubts about who was a “natural born Citizen” when it had no such doubt. Its doubts were only whether a child born in the U.S. to alien parents was a “citizen” under the law existing prior to the Fourteenth Amendment and necessarily also under that very amendment. It also read Wong Kim Ark as resolving those non-existing doubts and holding that Wong was a “natural born Citizen.” But Justice Gray only held that Wong was a “citizen of the United States” under the Fourteenth Amendment. He never held that he was a “natural born Citizen.” So Wong, not addressing the issue, never resolved any doubts concerning what a “natural born Citizen.” In fact, the Court cited and quoted Minor v. Happersett’s definition of the clause which was a child born in the country to citizen parents.
Judge Malihi finds that Obama “became a citizen at birth and is a natural born citizen.” What he is saying is that by the mere fact that Obama was a citizen at birth, he is a “natural born Citizen.” But this is not the definition of a “natural born citizen.” Judge Malihi's definition must fail just on a textual basis. The clause is "natural born Citizen," not "born Citizen." The "natural" must also be given meaning. And when we do give "natural" meaning, we see that it cannot be separated from the word of art and idiom, "natural born Citizen" which means a child born in the country to citizen parents.
The Founders and Framers looked for a citizenship standard that would assure them that the President and Commander in Chief would have the most allegiance, attachment, and loyalty to the republic. A citizenship test that depended only upon when a child became a citizen would not be sufficient, for it alone would not say anything of how the child would be reared. But a test that included to whom a child was born and that provided some indication of how the child would be raised much better provided for their needs for allegiance to the nation. For those reasons, a “natural born citizen” could not just depend upon being declared a citizen from the moment of birth, which any positive law could declare. Rather, the Founders and Framers included two natural components which were that the child would have to be born in the country to citizen parents. This was the time-honored definition of a “natural born Citizen” under natural law and the law of nations and this is what they accepted.
A “born citizen,” “citizen at birth,” “citizen by birth” or “citizen from birth,” if he or she does not satisfy this original American common law definition, is an Article II “Citizen of the United States” as defined by the Fourteenth Amendment, Congressional Act, or treaty, but not an Article II “natural born Citizen” as defined by natural law and the law of nations which definition is a child born in the country to citizen parents. In other words, a “born . . . citizen of the United States” under the Fourteenth Amendment or Congressional Act is simply a person born in the United States and “subject to the jurisdiction thereof.” As can be seen, in the Fourteenth Amendment there is no citizen parent requirement, but there is a “subject to the jurisdiction thereof” requirement. In contradistinction, in the “natural born Citizen” definition, there is a citizen parent requirement, but there is no “subject to the jurisdiction thereof” requirement, for being born in the country to citizen parents, such a child could not be born other than "subject to the jurisdiction" of the United States. Since the amendment is designed only to allow someone to become a member of the United States and nothing more, according to Wong Kim Ark there is no need to require citizen parents but at least to require that the child be born “subject to the jurisdiction” of the United States. Since a child that is born in the United States to citizen parents will always be born “subject to the jurisdiction” of the United States, we do not engage in “jurisdiction” analysis when exploring whether one is a “natural born Citizen,” but rather just look to see that the person was born in the United States to citizen parents. This is why Minor engaged in no “subject to the jurisdiction” analysis when examining Virginia Minor’s citizenship status. On the other hand, since under Wong Kim Ark a Fourteenth Amendment (or Congressional Act) "born . . . citizen of the United States" can be born in the United States to one or two alien parents, Wong Kim Ark instructs that we must do a "subject to the jurisdiction" analysis which is what it did of Wong. All this tells us that there is a fundamental constitutional difference between an Article II "natural born Citizen," who is born within the sole, full, and complete legal, political, and military allegiance and jurisdiction and therefore sole citizenship of the United States and a Fourteenth Amendment "born . . . citizen of the United States" who is born with divided allegiance, jurisdiction, and citizenship.
If any “born citizen,” “citizen at birth,” “citizen by birth” or “citizen from birth” does not satisfy the “natural born Citizen” definition, we cannot simply amend Article II by changing the definition of a “natural born Citizen” to one of these phrases. In other words, we cannot just take an Article II “Citizen of the United States” as defined by the Fourteenth Amendment or Congressional Act and convert that person into an Article II “natural born Citizen” as defined by American common law which has its basis in natural law and the law of nations. Rather, if one is going to maintain that he or she is an Article II “natural born Citizen,” then let he or she prove it under the time-honored definition of the clause. Let us not accept that the definition of an Article II “natural born Citizen” has somehow been changed to some other phrase such as a “citizen at birth” or “citizen by birth” without seeing any evidence of that ever happening. Let us not because of political expediency take someone who may at best be a Fourteenth Amendment “citizen of the United States” and convert that person into an Article II “natural born Citizen.” The burden of proof is on those seeking to change the Constitution and its original and long-standing definition of a “natural born Citizen,” not on those who are fighting to preserve, protect, and defend them.
So as we can see, our U.S. Supreme Court has given the exact “natural born Citizen” clause only one definition and that is a child born in the country to citizen parents. See Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898). This means that only a child born in the United States to two parents who are either Article II “natural born Citizens” or Fourteenth Amendment or statutory “born or naturalized . . . “citizens of the United States” is an Article II “natural born Citizen.” This is the consensus opinion of a “natural born Citizen” as provided by our U.S. Supreme Court and Congress since the beginning of our nation. Consequently, a “Citizen of the United States” is any citizen so made by Act of Congress, treaty, or other positive law such as the Fourteenth Amendment. Indeed, while a Fourteenth Amendment “born . . . citizen of the United States” may be born with dual and divided allegiance to the United States, an Article II “natural born Citizen” is born only within the sole, full, complete, and undivided legal, political, and military allegiance and jurisdiction of and sole citizenship in the United States.
A “natural born Citizen” includes all those who are born with no foreign allegiance and excludes all those who are born with any foreign allegiance. On the other hand, a “citizen,” “native-born citizen,” “born Citizen,” or “citizen of the United States” who is not a “natural born Citizen” can be born with foreign allegiance but through positive law is nevertheless naturalized to be a “citizen of the United States” either at birth or after birth. Hence, a “natural born Citizen” has only one definition which was recognized during the Founding and which has been confirmed by our U.S. Supreme Court, Congress, and other historical sources. That definition is a child born in the country to citizen parents. Satisfying this definition removes from the child foreign allegiance which may attach by birth on foreign soil (by jus soli) or by birth to one or two foreign parents (by jus sanguinis). It is by satisfying this definition that one is born with no foreign allegiance and thus attached and loyal only to the U.S. Consequently, all “natural born Citizen[s]” are “citizens of the United States,” but not all “citizens of the United States” are “natural born Citizen[s].” Therefore, any “born . . . citizen of the United States” under the Fourteenth Amendment must still show that he or she satisfies the American common law definition of a “natural born Citizen” in order to be considered a “natural born Citizen.” Failing to make that showing, a “born” or “native born” citizen under the Fourteenth Amendment is just that but not a Fourteenth Amendment “natural born Citizen.”
Judge Malihi has not made any findings of fact concerning the question of where Obama was born. Obama the candidate wants to be President again. Under Article II, Section 1, Clause 5, Obama has the burden of proof to conclusively prove that he is a “natural born Citizen.” As part of that burden, he has to conclusively prove that he was born in the United States. Neither Obama nor his attorney appeared at the hearing to present any evidence on the issue. Judge Malihi found the plaintiffs’ documentary evidence to be insufficient for whatever purposes it could have been used. Nor did he find that that evidence, which includes a paper copy of the computer scan of Obama’s alleged long form birth certificate, to be sufficient to prove that Obama was born in Hawaii. We can see from the exact words used by Judge Malihi that Obama has failed to carry his burden to conclusively prove that he was born in the United States. Judge Malihi said that he “considered” that Obama was born in the United States. We do not know what this means and it appears that Judge Malihi attempts to avoid the issue of whether he found that Obama was born in the United States. Clearly, “considered” does not mean found. Since Obama failed to carry his burden of proof as to his place of birth and Judge Malihi’s decision actually confirms that fact, the Georgia Secretary of State should reject Judge Malihi’s decision and rule on his own that Obama not be placed on the primary ballot.
Should the Georgia Secretary of State find that there is sufficient evidence in the record which conclusively shows that Obama was born in the United States, then he can still find that Obama is still not a “natural born Citizen.” We have seen that Judge Malihi relies on Ankeny which is bad law when it comes to the definition of an Article II “natural born Citizen.” He fails in not giving controlling effect to the U.S. Supreme Court case of Minor which clearly defined a “natural born citizen.” Finally, Judge Malihi incorrectly reads Wong Kim Ark and gives controlling effect to that incorrect reading. The time-honored American common law definition of the clause is a child born in the country to citizen parents. There is no dispute that Obama was born to a non-U.S. citizen father (his father was a British citizen) and U.S. citizen mother. Being born to an alien father, Obama also inherited his father’s British citizenship under the British Nationality Act 1948. All this demonstrates that Obama was not born in the full and complete legal, political, and military allegiance and jurisdiction of the United States. He is therefore not an Article II “natural born Citizen” and cannot be placed on the Georgia primary ballot.
Mario Apuzzo, Esq.
February 3, 2012
http://puzo1.blogspot.com/
By Mario Apuzzo, Esq.
February 3, 2012
Georgia State Administrative Law Judge, Michael M. Malihi, issued his decision on Friday, February 3, 2012, finding that putative President, Barack Obama, is eligible as a candidate for the presidential primary election under O.C.G.A. Sec. 21-2-5(b). The decision can be read here, http://obamareleaseyourrecords.blogspot.com/2012/02/judge-malihi-rules-against-plaintiffs.html . I must enter my objection to this decision which is not supported by either fact or law.
The Court held: “For purposes of this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny [sic meant Ankeny], he became a citizen at birth and is a natural born citizen.”
But there is no evidence before the Court that Obama was born in the United States. The court can only rest its finding of fact on evidence that is part of the court record. The judge tells us that he decided the merits of the plaintiffs’ claims. But he does not tell us in his decision what evidence he relied upon to “consider[]” that Obama was born in the United States. The judge “considered” that Obama was born in the United States. What does “considered” mean? Clearly, it is not enough for a court to consider evidence or law. It must make a finding after having considered facts and law. The judge simply does not commit to any finding as to where Obama was born. Using the word “considered” is a cop out from actually addressing the issue. Additionally, we know from his decision that neither Obama nor his attorney appeared at the hearing let alone introduced any evidence of Obama’s place of birth. We also know from the decision that the judge ruled that plaintiffs’ documents introduced into evidence were “of little, if any, probative value, and thus wholly insufficient to support Plaintiff’s allegations.” Surely, the court did not use those “insufficient” documents as evidence of Obama’s place of birth. Nor does the judge tell us that he used those documents for any such purpose. The judge also does not tell us that the court took any judicial notice of any evidence (not to imply that it could). The judge did find that Obama has been certified by the state executive committee of a political party. But with the rules of evidence of superior court applying, this finding does not establish anyone’s place of birth. Hence, what evidence did the judge have to rule that Obama is born in the United States. The answer is none.
The court did not engage in its own thoughtful and reasoned analysis of the meaning of an Article II “natural born Citizen,” but rather relied only upon Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), a state-court decision which erred in how it defined a “natural born Citizen.”
The court says that Ankeny is persuasive. The court does not show us why Ankeny is persuasive other than to just provide some quotations from the decision. On the contrary, upon close analysis, we can see that Ankeny is far from persuasive on the definition of a “natural born Citizen.” The court’s decision can only be as sound as the Ankeny decision may be. But an analysis of that decision shows that it was incorrectly decided as to its definition of an Article II “natural born Citizen.”
Presidential eligibility is a national issue. Under our Constitution, like the States do not have power to naturalize citizens, they also do not have power to change, add, or diminish the meaning of an Article II “natural born Citizen.” See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (states have no authority to change, add, or diminish the eligibility requirements for members of Congress). Moreover, as naturalization needs uniformity, so does the citizenship standard needed to be met by those wishing to be eligible to be President. Hence, any state court decision on the meaning of a “natural born Citizen” is not binding on the nation in determining who is eligible to be President. Such a decision can only be ultimately made by the U.S. Supreme Court which would make its decision the law of the entire nation. The Ankeny case is a decision of the Indiana state court and not by the U.S. Supreme Court. For this reason, the Ankeny decision is not binding on any court deciding the question of what is a “natural born Citizen.” But not only is the decision not binding, it also needs to be rejected for diminishing the meaning of an Article II “natural born Citizen.”
Apart from the Ankeny decision not being binding on the national issue of what is a “natural born Citizen,” the decision itself should be rejected on its merits.
The Constitution’s text does not define a “natural born Citizen.” Yet, Ankeny did not even discuss what the Founders’ and Framers” original intent was in including the “natural born” Citizen clause in the Constitution. It is a rule of constitutional construction that we can learn what the Founders and Framers intended by a certain term they included in the Constitution by discovering what their purpose was for including the term in that document. But the Ankeny court told us what an Article II “natural born Citizen” is without examining the purpose for which the Founders and Framers included that clause in Article II, Section 1. No where in the decision do we see that the court examined what the Founders’ and Framers’ intent was for inserting the clause in the Constitution. The court conducted no independent historical research or analysis regarding what the Founders and Framers intended when they wrote the “natural born Citizen” clause in the Constitution in 1787. In fact, no where in the decision did the court even raise the issue of the Founders’ and Framers’ intent when they wrote the clause in Article II. It provided no sources from the Founding period which in any way supports its holding. It discussed no historical records or declarations of historical figures. So its decision as to what a “natural born” Citizen is has no historical or legal support.
The Founders and Framers place their trust in “the Laws of Nature and of Nature’s God.” The Declaration of Independence, para. 1. They came to learn what natural law was from studying ancient history and its influence in the then modern world. They knew from studying this history and the great publicists, including Emer de Vattel who was the Founders’ and Framers’ favorite, that natural law became the law of nations. And Vattel in Section 212 of his The Law of Nations (London 1797) (1st ed. Neuchatel 1758) defined what a “natural born Citizen” is. There he said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The Indiana state court in Ankeny did not even discuss natural law and the law of nations. The Ankeny court just barely acknowledged Emer de Vattel. It refers to Vattel's highly influential work, The Law of Nations, as "an eighteenth century treatise" and discusses neither Vattel nor his work. Hence, it fails to understand the importance of the law of nations and Vattel to the Founders and Framers and in the founding of our nation and their drafting of our Constitution in which they included the law of nations and not the English common law as part of Article III "Laws of the United States." The court hardly knew who Emer de Vattel was. This should be an indication to anyone who has seriously studied the Obama eligibility issue of how much reliance we can place on the court’s ruling as to what a “natural born Citizen” is.
Judge Malihi also did not discuss the early naturalization statutes passed by our early Congresses. These acts are critical in understanding the definition of a “natural born Citizen” because so many members of the early Congresses were Founders and Framers. “The significance of such a statute passed by the first Congress was, of course, the fact that many of the framers of the Constitution were Members of that first Congress, as well as the fact that the first Congress’s understanding of the meaning of the terms of the Constitution was most contemporaneous in time with the document’s adoption. One author has noted that of the “Committee of Eleven,” which first proposed to the Convention of 1787 the eligibility requirement of being a “natural born” citizen, 8 of the 11 committee members were in that first Congress, and none stated objections to or disagreement with the characterization of the term “natural born” by statute by the Congress.” Christina Lohman, Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause, 36 Gonzaga Law Review 349, 371 (2000/2001). The Naturalization Acts of 1790, 1795, and 1802, prove that only a child born in the United States to U.S. citizen parents can be an Article II “natural born Citizen.” These acts treated children born in the United States to alien parents as aliens themselves. These acts also naturalized children born abroad to U.S. citizen parents to be in 1790 “natural born citizens” and then in 1795 and thereafter “citizens of the United States.” By analyzing these acts, we can see that the only child over whom Congress did not exercise its naturalization power was a child born in the United States to citizen parents. Hence, that child was the “natural born citizen.”
Ankeny misread Minor v. Happersett, 88 U.S. 162 (1875), saying that the Minor Court read Article II and the Fourteenth Amendment "in tandem," suggesting without any support that the latter somehow amended the former. It also erred when it said that Minor "left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen." The Court did no such thing. Rather, the Court left open that question as it applies to a Fourteenth Amendment born "citizen of the United States," not an Article II "natural born Citizen." Minor told us that there is no doubt who a “natural born Citizen” is, telling us that it is a child born in the country of two U.S. citizen parents. That definition is based on natural law and the law of nations and not the English common law. Indeed, this confirms that the Founders and Framers gave us only one citizenship definition to be used to determine eligibility to be President. On the other hand, Minor added that there is doubt as to whether a child born in the U.S. to alien parents was even a “citizen.” The Framers gave Congress the power to make future “citizens of the United States” through naturalization. Hence, the doubts have been over the definition making persons the parents of a future “natural born Citizen,” not over the definition making the child of those parents a “natural born Citizen.” It also confounded Minor and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) as relying upon the English common law to define a “citizen” and a “natural born Citizen.” It said that Minor relied upon the English common law like Wong Kim Ark did when it did not do any such thing, for it relied upon natural law and the law of nations which when applied in the United States became “common-law” (the language that Minor used), which given the definition of a “natural-born citizen” that the Court provided (including the citizenship of the parents as a condition of being a “natural-born citizen”) could not have been English common law but rather was American common law. In order to justify its decision, Ankeny gave authority and respect to the feudal English common law (per Lord Coke and Lord Chief Justice Cockburn) on matters of U.S. citizenship and gave no such authority and respect to our own American common law which Minor showed replaced that feudal law in the new republic. In fact, there is not one word in the Minor decision which sounds in the language of the English common law, yet Ankeny said that it relied upon English common law. It distinguished Minor in footnote 12 by saying that it “contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.” But it did not explain how or why having one U.S. citizen parent rather than none would make any difference when applying the “natural born” Citizen clause.
Wong Kim Ark, a Fourteenth Amendment citizenship case, answered the question left open in Minor, which question concerned whether Wong Kim Ark was a “citizen of the United States,” not an Article II “natural born Citizen.” Wong Kim Ark relied upon the English common law, which historically had been used to define British nationality and not American nationality, to define a “citizen of the United States.” But Ankeny mistakenly concluded that Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a “citizen of the United States.” Wong Kim Ark did no such thing. There is nothing in Wong Kim Ark decision that suggests that the Court declared Wong Kim Ark an Article II “natural born Citizen” and therefore eligible to be President. The U.S. Supreme Court in Minor v. Happersett (1875) already had told us that there was no doubt as to who could be a “natural born Citizen.” Since there is no doubt and if Wong Kim Ark was a “natural born Citizen,” the U.S. government would not have argued that he was not even a “citizen of the United States,” let alone a “natural born Citizen.” Also, Wong Kim Ark never said that Minor was wrong in defining a “natural born Citizen” in the way that it did under natural law and the law of nations and not the English common law.
Also, Ankeny relied strictly upon U.S. v. Wong Kim Ark and its historical sources for its decision on what a “natural born Citizen” is. They made a monumental declaration as to the meaning of the clause based solely upon a 1898 U.S. Supreme Court case that did not even involve any dispute regarding the meaning of a “natural born Citizen” and which ironically confirmed Vattel’s definition of a “natural born Citizen” as stated by Minor v. Happersett in 1875.
Ankeny incorrectly took the Wong Kim Ark holding that Wong was a Fourteenth Amendment born "citizen of the United States," and even though Wong itself provides a different definition for an Article II "natural born Citizen," and even though Wong cites and accepts Minor's definition of a "natural born Citizen," the Ankeny court equated the Wong "citizen of the United States" with an Article II "natural born Citizen" and said that the Wong decision stands for such a proposition when it does not. Hence, it erroneously relied upon Wong Kim Ark, stating that the Court there declared Wong a “natural born citizen” when it only declared him a “citizen” of the United States. In Footnote 14 it said: “We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution’s Article II language is immaterial. This is a fantastic statement given the care and precision which the Founders and Framers used with their language in drafting and adopting the Constitution, a circumstance which has always been recognized by our U.S. Supreme Court when called upon to interpret the Constitution. Additionally, Wong Kim Ark itself distinguished between a child born in the country to one or two alien parents and a child born in the country to citizen parents, telling us that while both are “citizens,” only the latter is a “natural born” Citizen. Wong said: “‘The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ p. 22, note.” Wong Kim Ark, at 666-67 (citing and quoting Binney’s 1853 pamphlet on citizenship).
Ankeny erroneously conflated an Article II "natural born Citizen" with a Fourteenth Amendment "citizen of the United States." Article II, Section 1, Clause 5 and other parts of the Constitution are clear in distinguishing between a “natural born Citizen” and a “Citizen of the United States.” The text of the Fourteenth Amendment defines a “citizen of the United States,” not a “natural born Citizen.” Even if we were to give them any controlling effect which they do not have, there is also nothing in the legislative debates which indicates that the amendment was designed to change the meaning of an Article II “natural born Citizen.” We cannot just forget about the distinction made by the Framers in Article II between a “natural born Citizen” and a “Citizen of the United States.” Just ruling someone to be a “citizen of the United States” does not necessarily mean that the person is a “natural born Citizen,” for “citizens of the United States” are made up of “natural born Citizens” and naturalized “citizens of the United States.” The latter are naturalized either “at birth” or after birth. “Natural born Citizens” are citizens by virtue of natural law. Other U.S. citizens are citizens by virtue of positive law which in Wong Kim Ark was “by virtue of the first clause of the fourteenth amendment.” Wonk Kim Ark, at 686.
Ankeny as did Wong Kim Ark also mistakenly relied upon Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830). What the court did is cite and quote from Justice Story who was in the minority and whose opinion was not accepted by the majority. The majority of the Court in Inglis, which included Chief Justice John Marshall, did not rely upon the English common law jus soli rule but rather the law of nation jus sanguinis rule when it held that if the demandant was born in New York after July 4, 1776, his minority incapacitated him from making any election as to which citizenship to chose and he therefore inherited the character and election and therefore the citizenship of his father (father and mother) who, if born a British subject and if he continued that national character as of the time of his son’s birth, made the son British also, subject to the son renouncing the citizenship chosen for him by his British father during minority and choosing U.S. citizenship upon becoming an adult. Id. at 124 and 126. The majority cited and relied upon Vattel when arguing that a person has a right to elect what nation to be part of in time of revolution. Id. at 122. Justice Story put forth the English common law jus soli rule for citizenship and ruled that the damandant if born in New York was an “American citizen” regardless of the citizenship of his parents (Id. at 164 and 170). But Justice Story was in the minority. The majority of the Court did not adopt Justice Story’s opinion and reliance on the English common law.
Both Ankeny and Wong Kim Ark also mistakenly relied upon that part of the dissenting opinion in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), which was not directed to the issue of slavery disabling blacks from being citizens but rather directed to whether we defined U.S. citizenship under natural law and the law of nations or under the English common law. This dissenting opinion did not carry the day and was also rejected by the Minor court which in 1875 defined a “natural-born citizen” as a child born in a country to citizen parents.
Ankeny used English common law to define an Article II "natural born Citizen" when all U.S. Supreme Court cases, including Minor and Wong Kim Ark, have used American common law to do so.
Ankeny said: “Although President Arthur’s status as a natural born citizen was challenged in the 1880 Presidential Election on the grounds that he was born in Canada rather than Vermont, the argument was not made that because Arthur’s father was an Irish citizen he was constitutionally ineligible to be President.” But the court provided no evidence that anyone then was aware that when Chester Arthur was born, he was born to an alien father. Additionally, even if anyone of any authority was aware that Arthur’s father when he was born was an alien, one constitutional violation does not justify another.
Ankeny cited and quoted from Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) in support of its definition of a "natural born Citizen" when the question of the meaning of the clause did not exist in that case and the only reference therein to a "natural born Citizen" was made by the court when it recited the facts but not when it provided any legal analysis. It is incredible that the court would give such weight to such a statement of dicta and not give any weight to the U.S. Supreme Court’s definition of a “natural-born citizen” in Minor.
The pro se plaintiffs in Ankeny claimed, among other things, that Obama was not eligible to be President under Article II, Section 1. The court said that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents….” The court affirmed the dismissal of plaintiffs’ complaint on defendants’ motion that on its face plaintiffs’ complaint failed to state a claim upon which relief can be granted. What is also amazing about the Ankeny case is that after it went through its explanation as to what a “natural born Citizen” is and while it dismissed the plaintiffs’ case in which they argued both that Obama has yet to prove that he was born in the United States (it called that claim a “non-factual assertion[]”) and that even if he were so born he still fails to meet the legal definition of a “natural born Citizen,” it neither held that Obama was born in the United States nor that he is a “natural born Citizen.” In fact, there was absolutely no evidence before the court that Obama was born in Hawaii. And as we have seen, there was also absolutely no evidence before Judge Malihi showing the Obama was born in the United States. Hence, the Ankeny opinion regarding whether Obama is a “natural born Citizen” is nothing more than an advisory opinion, for the Court never ruled that he was such. The court never addressed the question of whether he was born in Hawaii. No evidence was presented to the court whether he was “born within the borders of the United States.” The court never even examined that issue. Hence, its statement that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents” does not prove that Obama was, in fact, born within the borders of the United States” and that he is therefore a “natural born Citizen.”
Ankeny was advisory on the "natural born Citizen" issue because it gave us its definition of a "natural born Citizen" but never applied that definition to Obama's personal situation. It resolved no real controversy. After it pronounced what the law was, it needed to apply that law to the facts. It needed to find that Obama was born in the United States and that he was thus a "natural born Citizen" to give its opinion any binding effect. It never made the finding that Obama was born in the United States. It never said that such a fact was established by the evidence before the court. So its whole opinion on what is a "natural born Citizen" is purely advisory.
To conclude that plaintiffs did not state a sufficient claim given the court’s ruling as to what a “natural born Citizen” is, there would have to exist uncontroverted evidence that Obama was in fact eligible to be President. The question of presidential eligibility is a legal question which the court could examine on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. But in order to make any conclusion as to whether plaintiffs adequately challenged Obama’s eligibility, given the fact that on a motion to dismiss a complaint the court is supposed to “view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant’s favor, and given the court’s own definition of what is a “natural born Citizen,” the court had to examine whether Obama was “born within the borders of the United States.” This legal hurdle shows that the court could not decide the question of the legal sufficiency of plaintiffs’ complaint by simply examining its face alone. Rather, the court needed evidence outside the complaint (e.g. a birth certificate) which means that the court would have had to convert the motion to dismiss to one for summary judgment.
But not only was there no evidence presented to the Ankeny court showing that Obama was in fact born in the United States, the court never called for such evidence nor did it even make such a factual finding. By the court’s own words, the citizenship of Obama’s parents was not relevant. But surely the only element of its “natural born Citizen” test, that Obama was born in the United States, was critically relevant. Yet the court dismissed the complaint for failure to state a claim without any evidence that Obama was born in the United States. Hence, how can the court dismiss the complaint for failure to state a claim? Rather, what the court did is just by way of advisory opinion tell us what it believes to be a “natural born Citizen” without applying its definition to the question of whether Obama is constitutionally eligible. If the court had addressed the place of birth issue, given its definition of a “natural born Citizen,” it would have ended the live controversy. It did not do that so its opinion is a mere advisory opinion with no application to a live factual controversy producing a just resolution. Lastly, if the court’s decision had not been advisory, the nation today would know whether Obama was or was not born “within the borders of the United States.”
The Ankeny plaintiffs may have argued that place of birth did not matter, given the two-citizen parent argument. But surely, they did not concede that Obama was born in the United States and the court did not make a finding that they made any such concession. Hence, once the court rejected the citizen-parents element and relied strictly on the place of birth, it could not simply conclude that plaintiffs did not state a claim, for the ultimate issue was always Obama's eligibility which they clearly stated in their complaint. Again, the court was duty bound on a motion to dismiss on the face of the complaint to give the non-moving party every reasonable inference. I cannot imagine, given that the court was well aware of the issue of place of birth, the plaintiffs never conceded that Obama was born in the United States, the ultimate issue was eligibility, and the requirement that a court faced with a motion to dismiss on the face of a complaint is to give the non-movant the benefit of all reasonable inferences, the court not treating a complaint that says that Obama was not eligible as also encompassing the place of birth issue or in the alternative not giving the non-moving pro se parties the opportunity to amend their complaint.
The Ankeny court could have completely disposed of the case on an independent state ground. There was no need for the court to journey into the waters of what an Article II “natural born Citizen” is. Not being satisfied with giving us its opinion on what a “natural born Citizen” is as it pertains to persons born in the United States, the court in Footnote 15 even cautioned that while the question of whether someone born out of the United States can be a “natural born” Citizen was not before it, its decision should not be interpreted to mean that being born in the United States is the only way someone can be a “natural born Citizen.”
As we have seen, Ankeny is simply bad law for many reasons. The main one is that it rests on the incorrect notion that Wong Kim Ark declaring that Wong was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment necessarily means that the Court said he was a “natural born Citizen.” Such a position is remarkable given that the Indiana court itself admitted in its own opinion that it is aware that the Constitution contains both “natural born Citizens” and “citizens of the United States” and that the Wong holding did not include “natural born Citizen.”
So, any citation to Ankeny v, Governor of Indiana is misguided for at least two reasons, and as we have seen above there are many more. It read Minor v. Happersett as having doubts about who was a “natural born Citizen” when it had no such doubt. Its doubts were only whether a child born in the U.S. to alien parents was a “citizen” under the law existing prior to the Fourteenth Amendment and necessarily also under that very amendment. It also read Wong Kim Ark as resolving those non-existing doubts and holding that Wong was a “natural born Citizen.” But Justice Gray only held that Wong was a “citizen of the United States” under the Fourteenth Amendment. He never held that he was a “natural born Citizen.” So Wong, not addressing the issue, never resolved any doubts concerning what a “natural born Citizen.” In fact, the Court cited and quoted Minor v. Happersett’s definition of the clause which was a child born in the country to citizen parents.
Judge Malihi finds that Obama “became a citizen at birth and is a natural born citizen.” What he is saying is that by the mere fact that Obama was a citizen at birth, he is a “natural born Citizen.” But this is not the definition of a “natural born citizen.” Judge Malihi's definition must fail just on a textual basis. The clause is "natural born Citizen," not "born Citizen." The "natural" must also be given meaning. And when we do give "natural" meaning, we see that it cannot be separated from the word of art and idiom, "natural born Citizen" which means a child born in the country to citizen parents.
The Founders and Framers looked for a citizenship standard that would assure them that the President and Commander in Chief would have the most allegiance, attachment, and loyalty to the republic. A citizenship test that depended only upon when a child became a citizen would not be sufficient, for it alone would not say anything of how the child would be reared. But a test that included to whom a child was born and that provided some indication of how the child would be raised much better provided for their needs for allegiance to the nation. For those reasons, a “natural born citizen” could not just depend upon being declared a citizen from the moment of birth, which any positive law could declare. Rather, the Founders and Framers included two natural components which were that the child would have to be born in the country to citizen parents. This was the time-honored definition of a “natural born Citizen” under natural law and the law of nations and this is what they accepted.
A “born citizen,” “citizen at birth,” “citizen by birth” or “citizen from birth,” if he or she does not satisfy this original American common law definition, is an Article II “Citizen of the United States” as defined by the Fourteenth Amendment, Congressional Act, or treaty, but not an Article II “natural born Citizen” as defined by natural law and the law of nations which definition is a child born in the country to citizen parents. In other words, a “born . . . citizen of the United States” under the Fourteenth Amendment or Congressional Act is simply a person born in the United States and “subject to the jurisdiction thereof.” As can be seen, in the Fourteenth Amendment there is no citizen parent requirement, but there is a “subject to the jurisdiction thereof” requirement. In contradistinction, in the “natural born Citizen” definition, there is a citizen parent requirement, but there is no “subject to the jurisdiction thereof” requirement, for being born in the country to citizen parents, such a child could not be born other than "subject to the jurisdiction" of the United States. Since the amendment is designed only to allow someone to become a member of the United States and nothing more, according to Wong Kim Ark there is no need to require citizen parents but at least to require that the child be born “subject to the jurisdiction” of the United States. Since a child that is born in the United States to citizen parents will always be born “subject to the jurisdiction” of the United States, we do not engage in “jurisdiction” analysis when exploring whether one is a “natural born Citizen,” but rather just look to see that the person was born in the United States to citizen parents. This is why Minor engaged in no “subject to the jurisdiction” analysis when examining Virginia Minor’s citizenship status. On the other hand, since under Wong Kim Ark a Fourteenth Amendment (or Congressional Act) "born . . . citizen of the United States" can be born in the United States to one or two alien parents, Wong Kim Ark instructs that we must do a "subject to the jurisdiction" analysis which is what it did of Wong. All this tells us that there is a fundamental constitutional difference between an Article II "natural born Citizen," who is born within the sole, full, and complete legal, political, and military allegiance and jurisdiction and therefore sole citizenship of the United States and a Fourteenth Amendment "born . . . citizen of the United States" who is born with divided allegiance, jurisdiction, and citizenship.
If any “born citizen,” “citizen at birth,” “citizen by birth” or “citizen from birth” does not satisfy the “natural born Citizen” definition, we cannot simply amend Article II by changing the definition of a “natural born Citizen” to one of these phrases. In other words, we cannot just take an Article II “Citizen of the United States” as defined by the Fourteenth Amendment or Congressional Act and convert that person into an Article II “natural born Citizen” as defined by American common law which has its basis in natural law and the law of nations. Rather, if one is going to maintain that he or she is an Article II “natural born Citizen,” then let he or she prove it under the time-honored definition of the clause. Let us not accept that the definition of an Article II “natural born Citizen” has somehow been changed to some other phrase such as a “citizen at birth” or “citizen by birth” without seeing any evidence of that ever happening. Let us not because of political expediency take someone who may at best be a Fourteenth Amendment “citizen of the United States” and convert that person into an Article II “natural born Citizen.” The burden of proof is on those seeking to change the Constitution and its original and long-standing definition of a “natural born Citizen,” not on those who are fighting to preserve, protect, and defend them.
So as we can see, our U.S. Supreme Court has given the exact “natural born Citizen” clause only one definition and that is a child born in the country to citizen parents. See Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898). This means that only a child born in the United States to two parents who are either Article II “natural born Citizens” or Fourteenth Amendment or statutory “born or naturalized . . . “citizens of the United States” is an Article II “natural born Citizen.” This is the consensus opinion of a “natural born Citizen” as provided by our U.S. Supreme Court and Congress since the beginning of our nation. Consequently, a “Citizen of the United States” is any citizen so made by Act of Congress, treaty, or other positive law such as the Fourteenth Amendment. Indeed, while a Fourteenth Amendment “born . . . citizen of the United States” may be born with dual and divided allegiance to the United States, an Article II “natural born Citizen” is born only within the sole, full, complete, and undivided legal, political, and military allegiance and jurisdiction of and sole citizenship in the United States.
A “natural born Citizen” includes all those who are born with no foreign allegiance and excludes all those who are born with any foreign allegiance. On the other hand, a “citizen,” “native-born citizen,” “born Citizen,” or “citizen of the United States” who is not a “natural born Citizen” can be born with foreign allegiance but through positive law is nevertheless naturalized to be a “citizen of the United States” either at birth or after birth. Hence, a “natural born Citizen” has only one definition which was recognized during the Founding and which has been confirmed by our U.S. Supreme Court, Congress, and other historical sources. That definition is a child born in the country to citizen parents. Satisfying this definition removes from the child foreign allegiance which may attach by birth on foreign soil (by jus soli) or by birth to one or two foreign parents (by jus sanguinis). It is by satisfying this definition that one is born with no foreign allegiance and thus attached and loyal only to the U.S. Consequently, all “natural born Citizen[s]” are “citizens of the United States,” but not all “citizens of the United States” are “natural born Citizen[s].” Therefore, any “born . . . citizen of the United States” under the Fourteenth Amendment must still show that he or she satisfies the American common law definition of a “natural born Citizen” in order to be considered a “natural born Citizen.” Failing to make that showing, a “born” or “native born” citizen under the Fourteenth Amendment is just that but not a Fourteenth Amendment “natural born Citizen.”
Judge Malihi has not made any findings of fact concerning the question of where Obama was born. Obama the candidate wants to be President again. Under Article II, Section 1, Clause 5, Obama has the burden of proof to conclusively prove that he is a “natural born Citizen.” As part of that burden, he has to conclusively prove that he was born in the United States. Neither Obama nor his attorney appeared at the hearing to present any evidence on the issue. Judge Malihi found the plaintiffs’ documentary evidence to be insufficient for whatever purposes it could have been used. Nor did he find that that evidence, which includes a paper copy of the computer scan of Obama’s alleged long form birth certificate, to be sufficient to prove that Obama was born in Hawaii. We can see from the exact words used by Judge Malihi that Obama has failed to carry his burden to conclusively prove that he was born in the United States. Judge Malihi said that he “considered” that Obama was born in the United States. We do not know what this means and it appears that Judge Malihi attempts to avoid the issue of whether he found that Obama was born in the United States. Clearly, “considered” does not mean found. Since Obama failed to carry his burden of proof as to his place of birth and Judge Malihi’s decision actually confirms that fact, the Georgia Secretary of State should reject Judge Malihi’s decision and rule on his own that Obama not be placed on the primary ballot.
Should the Georgia Secretary of State find that there is sufficient evidence in the record which conclusively shows that Obama was born in the United States, then he can still find that Obama is still not a “natural born Citizen.” We have seen that Judge Malihi relies on Ankeny which is bad law when it comes to the definition of an Article II “natural born Citizen.” He fails in not giving controlling effect to the U.S. Supreme Court case of Minor which clearly defined a “natural born citizen.” Finally, Judge Malihi incorrectly reads Wong Kim Ark and gives controlling effect to that incorrect reading. The time-honored American common law definition of the clause is a child born in the country to citizen parents. There is no dispute that Obama was born to a non-U.S. citizen father (his father was a British citizen) and U.S. citizen mother. Being born to an alien father, Obama also inherited his father’s British citizenship under the British Nationality Act 1948. All this demonstrates that Obama was not born in the full and complete legal, political, and military allegiance and jurisdiction of the United States. He is therefore not an Article II “natural born Citizen” and cannot be placed on the Georgia primary ballot.
Mario Apuzzo, Esq.
February 3, 2012
http://puzo1.blogspot.com/
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